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- LAW, Page 55Reach Out and Tape Someone
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- A federal lawsuit seeks privacy protection for cordless phones
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- Don't talk about good neighbors to Scott Tyler -- especially
- on the telephone. First two of his neighbors in Dixon, Iowa,
- accidentally eavesdropped on his private telephone calls. Then,
- mistakenly believing Tyler was discussing drug deals, they
- informed the county sheriff's office. Supplied by an
- investigator with recording equipment, the neighbors proceeded
- to tape more than 20 cassettes of Tyler's phone conversations
- over the next few months. Although they never turned up a shred
- of evidence about drug sales, the tapes did help raise
- suspicion about some illegal personal business dealings.
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- In 1984 Tyler was tried and convicted for theft and
- conspiracy, and served four months behind bars. Refusing to let
- the matter end there, however, he slapped a $53 million suit
- on the two neighbors and the county for intercepting and
- recording his private conversations without a search warrant.
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- If Tyler had been using a conventional telephone, his case
- would probably have been solid. Unfortunately for him, the
- phone was a cordless model. Not only did that allow his
- neighbors to intercept his communications -- unwittingly at
- first -- on their own cordless unit, it apparently left him
- with virtually no legal protection. Citing precedents from
- other cases, two lower federal courts ruled that it was not
- necessary to obtain a warrant before surreptitiously listening
- to cordless phone conversations. Congress reached the same
- conclusion in 1986, specifically refusing to impose a warrant
- requirement on "the radio portion of a cordless telephone
- communication." Tyler has now taken his case to the U.S.
- Supreme Court, charging that his Fourth Amendment protection
- against unreasonable searches has been violated. Next week the
- high bench is expected to announce whether it will hear his
- case.
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- What the Supreme Court decides to do will be of more than
- passing interest to the 21 million American households that
- have cordless phones. The prevailing legal rationale holds that
- cordless users have no "reasonable expectation" of privacy
- because their phones -- unlike standard wire phones and
- sophisticated cellular devices -- transmit radio signals between
- a handset and a base unit that occasionally can be intercepted
- by other cordless phones or even by shortwave radio sets. As
- a result, Federal Communications Commission rules require that
- cordless phones carry a no-privacy warning.
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- To some experts, the broadcast basis of cordless phone
- transmissions largely settles the matter. Says lawyer Mark
- Cleve, who is defending the neighbors and the county in Tyler's
- case: "Persons with cordless phones have every reason to know
- that their communications can be easily overheard." Concurs
- Professor George Trubow of the John Marshall Law School in
- Chicago: "It's a buyer-beware situation. If you buy new
- technology, you ought to understand the risks."
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- Such reasoning does not impress cordless users like Tyler,
- who insists that "a cordless phone is just a high-tech
- extension phone." Argues one of his lawyers, Randall Wilson:
- "It is not the intention of those who purchase cordless phones
- to broadcast to a large number of people. Persons should not
- be forced to waive their rights in order to participate in a
- technology-driven society." Many civil libertarians and
- privacy-law experts agree. Says Harvard University law
- Professor Alan Dershowitz: "It is preposterous to make our
- legal rights turn on the physics of how the voice is
- transmitted."
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- To many legal observers, the cordless-phone controversy is
- part of a larger trend that is weakening the right of privacy.
- "Communication or activity that may be accidentally heard or
- seen is now increasingly perceived as no longer deserving a
- reasonable expectation of privacy," warns Stanley Ingber, a
- Drake University law professor.
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- Unless the Supreme Court or Congress sees fit to provide
- stronger protections, anyone using a cordless phone could wind
- up broadcasting his personal conversations to the world.
- Consider the consequences next time you call your spouse, your
- business partner, your stockbroker -- or your lawyer.
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- By Alain L. Sanders. Reported by Andrea Sachs/New York.
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